Q&A – 13 June 2011
Graduation party not paid for
A young boy who had just completed form 2 threw a party for his other friends at my pub. We entered into an agreement whereby I would provide the group the venue, food and drinks and would charge them per person. The party went well, and now the boy says he has no money to pay. His father claims that I should have never contracted with his son. What should I do?
KK, Dar
Assuming the boy is below the age of 18, you have contracted with a minor. We do not need to dwell on untested territory- the law is clear that any contract with a minor is voidable. That simply means that you cannot recover anything from the boy even though he agreed to pay you.
We are sure your thoughts then go to the parents especially the father, and whether he knew of the party and was going to pay for it. It seems unlikely that you will be able to prove this but if you can, then you might have a cause of action against the father. As far as the young boy is concerned you have no chance of recovery.
You also mentioned that you served these minors with drinks. That is illegal as the law prohibits you selling alcohol to minors, unless of course you meant soft drinks. If you served alcohol to these minors you can be prosecuted. The law comes in to protect the minor because of his age and limited ability to understand things.
Withdrawal of a suit where counterclaim raised
I am a businessman trading in home and office furniture. I instituted a suit against a certain NGO for payment of the furniture I supplied them. The case went on for more than three years and due to the speed of the case I decided not to proceed with it. I wrote a letter to the presiding magistrate to inform him about my intention and he accepted the withdrawal of the suit. Both parties were supplied with the court’s order to the effect. Shockingly after few weeks I am told that the magistrate has passed an ex-parte judgment against me because there was a so called ‘counterclaim”. How can I pay the NGO while I am the one who sued and withdrew the case and the court accepted my application to withdraw the suit? This is weird. Please assist.
GS, Dodoma
Our legal system allows a party claiming in a civil suit to withdraw his or her claim whenever they desire not to proceed, just like you did. In your case, the NGO raised a counterclaim, meaning they also claimed against you which is treated as a separate suit or action. It seems like you withdrew your claim against the NGO, and the NGO did not release its claim against you, although you were the one who initiated the suit. This has resulted in this ex parte judgment. You should have struck a deal with the NGO, that they also withdraw their claim against you, so that the suit can be withdrawn in its entirety. Bearing this in mind, we do not find any faults with the way the magistrate handled the matter.
We suggest you consult your attorney who can look at how the ex parte judgment can be set aside. Otherwise the judgment will remain intact against you despite the withdrawal of your claim.
Magistrate has interest in case
My daughter used to work as a house maid for a rich lady banker in Dar es Salaam. She is currently facing criminal charges for stealing her employer’s money. My daughter’s former employer’s sister is a magistrate in the same Court and I am informed that she is quite close to the trial magistrate. Is there any way I can avoid my daughter’s case from being tried by the assigned trial magistrate? If yes, what am I supposed to do? Please assist me.
KO, Dar
It seems you are worried that the current trial magistrate will not deliver justice as she might be biased and influenced by her fellow magistrate. It is trite law that a magistrate should not sit over a case in which he or she has either directly, indirectly or by legal implications. This is in accordance with one of oldest and plainest rules of natural justice and common sense that no man can be a judge on his own matter or give judgment concerning his own rights. Whereas it might be irrelevant that the younger sister of your daughter’s former employer is a magistrate and stationed in Dar es Salaam, the fact that she is close friend of the trial magistrate cannot easily be overlooked. In these circumstances we suggest that your attorney make an application for change of magistrate adducing the reasons you have given us.
Identification of assailant of deceased
In November 2005 at my home in Nkasi District we were attacked by armed robbers. They inflicted severe head injuries on my brother who died a few days later. Among his assailants was a boy who in the past was employed as a watchman by our neighbor. I managed to identify him through headlights of my car as they escaped from the scene. During the identification parade I also managed to spot him yet the trial Judge has acquitted him and the Prosecutor does not want to appeal saying the evidence is not sufficient. I differ with the opinion of the Judge and the state Attorney. What should I do?
OL, Nkasi
Courts make their decisions based on evidence before them. Since we do not have copies of the proceedings we are unable to guide you in detail. For example did you solely rely on your headlights? What defence did the accused bring in Court? Was there an alibi? Visual evidence is the weakest form of evidence because it has proven many a times to be unreliable. Court’s will normally not convict solely on that evidence. The identification parade also has its formalities to follow and if not followed by the police, this evidence cannot be used during trial. We however do sympathize with your loss but it seems that the Court did not have enough evidence to convict. Furthermore, since the director of public prosecutions is satisfied with the judgement of the court, no one can pursue further on the matter. The DPP is the sole controller of all criminal matters in the country.